Canadian Supremes Strike Down Detention Without Trial
In a unanimous decision, the Supreme Court of Canada struck down a law which permitted that country to detain terror suspects indefinitely without trial. Under the Canadian Immigration and Refugee Protection Act, a non-citizen could be detained upon the request of two high-ranking Canadian ministers. While this request was subject to review, that review could be conducted ex parte, and the suspect had no right to see the evidence against them.
In an opinion by Chief Justice Beverley McLachlin, the Court held that this law violates the Canadian Charter of Rights and Freedoms. In so holding, the Court expressed concerns that reduced process for terrorism suspects could lead to "removal from Canada, to a place where his or her life or freedom would be threatened." The Court cited one recent case where exactly this happened:
The potential consequences of deportation combined with allegations of terrorism have been under a harsh spotlight due to the recent report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Mr. Arar, a Canadian citizen born in Syria, was detained by American officials and deported to Syria. The report concludes that it is “very likely that, in making the decisions to detain and remove Mr. Arar to Syria, the U.S. authorities relied on information about Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar to terrorist groups: Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006) (“Arar Inquiry”), p. 30. In Syria, Mr. Arar was tortured and detained under inhumane conditions for over 11 months. In his report, Commissioner O’Connor recommends enhanced review and accountability mechanisms for agencies dealing with national security, including not only the Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and the Canadian Border Services Agency. He notes that these immigration-related institutions can have an important impact on individual rights but that there is a lack of transparency surrounding their activities because their activities often involve sensitive national security information that cannot be disclosed to the public: A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 562-65. Moreover, the sensitive nature of security information means that investigations lead to fewer prosecutions. This, in turn, restricts the ability of courts to guarantee individual rights: “Unless charges are laid, ... the choice of investigative targets, methods of information collection and exchange, and means of investigation generally will not be subject to judicial scrutiny, media coverage or public debate”
The Court added that national security concerns cannot allow fundamental freedoms to be stripped, even from non-citizens:
The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be.
Commenting on this decision, Canadian Minister of Public Safety Stockwell Day said "it is our intention to follow the Supreme Court ruling.”